Error Theory

Moral science has two halves. There are the implications of thinking straight about fact and value (ideal theory) and there are the implications of not thinking straight. Ideal theory is the foundation, error theory the daily battle.

Monday, May 30, 2005

Five good movies

My friend Eagle1 is collecting favorite movies. Here are some of mine:

Not really a spoiler warning, but stop here if you are really spoiler sensitive.

Crash is not realistic. The racist cop does things that cops don't do. The boyhood friends turned criminal are more normal than real criminals are. But all the exaggerations are used to give brilliant force to the underlying message: that racial wrongs propagate, and the dynamic can work the other way too. Treating people as individuals regardless of their race sweeps the facade of race aside, and the goodwill that springs from recognition of each other's individual qualities propagates, just as does the bad. In this contest between the wrongs created by treating people according to race, and the good done by treating people as individuals, race conscious government becomes the pump primer of the negative cycle, and Crash's indictments of race conscious government are devastating.

Great themes, punctuated by many powerfully encapsulating moments. A little bit of foolishness of the gun-possession-turns-law-abiding-people-into-murderers sort, but given the perfect scenario that this foolishness enables, I can't even complain about it. In theaters now.

2. Team America: World Police. This movie was never properly marketed and a lot of people who would have loved it didn't see it. The trailer tried to avoid alienating any part of the audience by promising to alienate everyone equally, and reviews mostly did the same, presenting the movie as sophmorically ridiculing both sides in the terror war. In fact, Team America is a total, over the top, leftist-crushing, terrorist-crushing, Kim-Jong-Il crushing patriotic romp, as moving and right as it is insanely funny. Be careful when you sip your soda. It is likely to come out your nose. I hear that in the DVD, they grossed out the sex scene (between marionettes, mind you), so be ready to cover your girlfriend/wife's eyes.

3. The Incredibles. Saw it for the second time when I took my mom to see it. She loved it. As with Team America, I don't have to worry about giving any dollars to stinking left-wing Hollywood actors. Yay.

4. On the Waterfront. My candidate for best movie ever made, and that was BEFORE I knew it was an allegory on the morality of outing Communists.

5. Austin Powers, International Man of Mystery and The Spy who Shagged Me. For a full year, whenever my girlfriend and I wanted to watch TV and there was nothing on, we would put in one of these. I even became fluent in Dr. Evil's rap. Just don't expect too much. It is incredibly stupid, but it never gets old, like Curly of the Three Stooges.

Saturday, May 28, 2005

Order to release Abu Ghraib photos ignores war powers

UPDATE: I have an updated version of this post here. The original post below won't steer you wrong, but it doesn't express the history of the case very well (thanks to my conflating Hellerstein's September ruling with his ruling last week). I recommend the new post.

ORIGINAL POST:Total insanity. Judge Alvin Hellerstein’s ruling that the government must turn over more Abu Ghraib photos to America’s enemies (via the ACLU) is based on an attempt to distinguish “secrets” from “embarrassment”:

If the documents are more of an embarrassment than a secret, the public should know of our government's treatment of individuals captured and held abroad," he noted, criticizing the "glacial pace" with which the George W. Bush administration had responded to the groups' requests. [Jim Lobe reporting.]

Our war against Islamic terrorism is in large part a PR war. Not only is Hellerstein’s attempt to distinguish PR from war oblivious to reality, it is not his call to make. It is the President’s.

The current ruling is the sequel to Hellerstein’s February ruling in the same case where he ordered the Dept. of Defense to fulfill ACLU Freedom of Information Act requests for details of detainee treatment. Mark Hamblett reported the heart of the February ruling as follows:

The CIA, making its request for a stay in American Civil Liberties Union v. Department of Defense, 04 Civ. 4151, invoked what the judge called a "seldom construed" statute — the CIA Information Act, which empowers the agency's director to exempt certain "operational files" from publication or disclosure under the Freedom of Information Act.

Judge Hellerstein said the act also contains an "exception to that exemption" in 50 U.S.C. §431(c)(3), where an " 'impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity' is being investigated by the congressional intelligence committees, various agencies of government, or the 'Office of Inspector General of the Central Intelligence Agency.' "

The CIA's Office of the Inspector General began a criminal investigation of allegations of improper treatment of prisoners in Iraq in May.

The only powers Hellerstein is recognizing here are the powers of Congress, manifest in the FOIA statute. He is completely ignoring the separate powers of the executive, in particular, the president's war powers. Hellerstein repeats this crazy claim in the present case when he asserts that “no one is above the law… merely raising national security concerns cannot justify unlimited delays.”

"The law" that he is referring to here is not the Constitution. It is Congress' FOIA (see the openning paragraph of Hellerstein's Opinion and Order). Hellerstein is asserting a principle of pure congressional supremacy.

The executive has no powers independent of Congress? Bullshit it doesn’t. No matter what the FOIA says, there is plenty of information that Congress cannot compel the executive branch to make public, especially in the areas of diplomacy and war-fighting. In time of war, it is the executive that determines what is and is not a matter of military necessity, not the Congress, and not some idiot judge who thinks he can distinguish the battle for hearts and minds from the battle of bullets and brawn.

As I said in my last post, I think SOME court oversight IS necessary here. Detailed balancing of national security and other constitutional interests is the job of the executive in time of war, but the courts should still be able to reject executive actions that clearly violate any reasonable balancing. This is not what Hellerstein is doing. He is simply refusing to recognize any executive war powers AT ALL.

The closest Hellerstein comes to addressing the war powers issue is on Page 6 of his Opinion and Order where he cites the Court’s assertion in United States v. Robel (1967) that:

Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart.

He then notes on his own that: “We are a nation that strives to value the dignity of all humanity.” Ergo, anything that an activist judge deems to be undignified (war?) cannot be a matter of national security. Eeeehaw! How's that for a deduction? Sorry Hellerstein. What is and is not a matter of national security is not for you to say. That is what we elect the president for.

When I say that this is "the closest Hellerstein comes to addressing war powers," I don't mean to say he comes close. His activist dismissal of "national defense" concerns comes not by way of addressing the president's war powers, but by way of addressing provisions of the FOIA that set out CONGRESS' attempts to accommodate and define presidential war powers. In other words, he remains throughout in the position of an absolute congressional supremacist, acknowledging no independent executive powers.

Hellerstein is the nutcase who let 9/11 families sue the airlines for the terrorist attack on 9/11 (hat tip Basil's Blog). He also refused to accept a guilty plea on the grounds that “fraud” does not necessarily imply “deception.” It doesn’t? About what we should expect from a Clinton appointee.

UPDATE: In googling this case, I did not keep proper track of the dates of what I was looking at and conflated Hellerstein's ruling this week with some of his earlier rulings in the same case. My analysis stands, but be apprised that the linked Opinion and Order is not from Hellerstein's latest ruling, as I stated, but is from a ruling that PRECEEDED the February 12th ruling. (It is from last September.)

February 12th Opinion and Order here. This and the September ruling are both based entirely on the FOIA, with no consideration given to presidential war powers except as provided for by the FOIA. The September ruling LOOKS at first like it is recognizing "national defense" as an independent executive concern, before regulating it strictly in terms of FOIA guidelines. The February ruling is explicitly based entirely on FOIA, holding that, since the DOD is investigating wrongdoing at Guantanamo, the "operational files" exception to FOIA does not apply and the information must be turned over.

I haven't been able to find the Order and Opinion for the May 26th ruling online yet, but the previous two rulings make it pretty clear what the basis must be. The previous two rulings were demanding that the Department of Defense submit to the FOIA process for determining whether the requested information had to be released. The latest ruling ordered the release of the photos. Hellerstein's fundamental position was laid out at the start of the September ruling, where he asserted that the DOD must without exception submit to FOIA. There is no reason to expect him to start attending to independent executive branch war powers now, and the order to release the photos suggest that he has not.

Tuesday, May 24, 2005

Editor approves Horsey's slander

After seeing David Horsey's political cartoon today (via Michelle Malkin) I decided to call his editors at the Seattle Post-Intelligencer to find out whether they are sane.

(Peee-ulitzer winner's sick-toon.)

I phoned editorial page editor Mark Trahant (his number here), and told him I think Horsey's cartoon is slanderous. Trahant's voice got high and tight as he insisted that the cartoon is accurate. He then started reading an explanation that Horsey had left for him. Horsey's explanation is based on the story of the Afghan prisoners who died during interrogation, as reported in detail by the New York Times four days ago. I protested that the Afghan killings were from over two years ago. Trahan shouted something unintelligible, and hung up.

When he answered again I said: "DON'T hang up on me," and we managed to have a small bit of a conversation. I suggested that the age of the Afghan cases matters because Horsey clearly implies that there is an ongoing problem of prisoners being brutalized to death. He implies that the abuse is current by having the officer in the cartoon cite this week's Newsweek story while a dead body is dragged out behind him, but all the evidence is that abuse is NOT an ongoing problem. The New York Times article was based on leaks from a 2000 page criminal investigation that the Army compiled over the last two years. The Army has investigated and is punishing what wrongdoing occurred. Trahant tried to maintain the Army's ongoing culpability by noting that: "The Army did not reveal the Afghan prisoner abuse." I answered that the Army's job is not to publicize abuse but to correct it, and they have done that.

Publicizing military bad behavior is not automatically the Fourth Estate's job either. As I said in my earlier post on the NYT story, there is no public interest in exposing military bad behavior that the military is dealing with. The same was the case at Abu Ghraib. What minor bad behavior was involved (otherwise acceptable humiliation of terrorists for intelligence purposes was undertaken by careless and unregulated silly people) had already been brought under proper control and criminal investigations were in process. As with the Afghan story, the news initially came out via the internal investigations that were appropriately dealing with what had occurred. There was no public interest in exposing what the Army had already corrected. Just the opposite, exposing Abu Ghraib did a huge public disservice, but this is what Isikoff and Mapes and others were awardedprizes for by their compatriots in the MSM.

The only difference between the Afghan story and the Abu Ghraib story is that the NYT's Afghan story was based on illegal leaks of classified information, while Abu Ghraib was based on private leaks of unclassified soldier's photos. The MSM asserts that its "gold standard" is two independent sources for anonymously sourced stories. How about also considering whether the leak is criminal, and whether there is a public interest in publishing it.

The issue of criminality is obscured in some cases by the precedent established by the Pentagon Papers case. As I understand it, the Supremes ruled that outrageous behavior on the part of the government so muddied the case that Daniel Ellsberg could not be criminally prosecuted for leaking classified documents. But this confusion does not apply to recent cases (the Afghan story and the pre-election release of a trumped-up pessimistic report on Iraq). Far from behaving outrageously, the government is doing exactly what it should. Our military has acted promptly and thoroughly to correct and prosecute incidents of wrongdoing. Now it is the media's turn. The NYT and its sources should be investigated for criminal wrongdoing when they publish classified information. Horsey's slander and the Abu Ghraib reporting fall into a different class. They do not involve any statutory criminality, but they most certainly are morally criminal.

ZM: Well it would help if we had more in the media who understand that when they criticize America or the military or anything that relates to this country, when they criticize that, it's magnified many times over overseas. An example is the Newsweek situation. They should have known better than to have done that. Even if it's true they ought not to have printed it. It's not true, but even if it were true, they should not have printed it because they knew—anyone would know that it would cause riots, people being killed. There are certain things that the media should and should not do when we're at war, and we're at war.

James McCormic suggests that the NYT is "circling the wagons" with its Afghanistan article, presenting a story of old errors corrected as fresh outrage in an attempt to take the heat off of Newsweek and put it back on the Army (where Newsweek originally tried to put it). Horsey's sick-toon manifests this strategy with all the deformed exaggerations of caricature that are the political cartoonist's bread and butter. Newsweek is attacked? Hurl slanderous lies at the military. No hint that he realizes that it is his own bias that is revealed to be deformed and exaggerated to the point of grotesque caricature.

Great quote from retired Air Force General Thomas McInerney, commenting on another case of the mainstream media making unfounded accusations against the U.S. military (Linda Foley's accusation that soldiers are murdering journalists):

It may be legitimate to investigate whether there may or may not have been an incident in which U.S. troops have targeted journalists, but there is no question at this point that major media figures are targeting the men and women of the United States military in Iraq, repeatedly and with no evidence.

They are acting like a Michael Moore army, using what remaining influence they have to tell the lies that might allow them to crush their critics and retain their influence. In an age when lying is getting easier and easier to expose, this does not look like a propitious strategy, but it is the only one available to them, because LIARS IS WHAT THEY ARE.

UPDATE: After reading the Pentagon Papers decision by the Supreme Court (New York Times v. United States, 1971), my above characterization of the case requires modification. I was conflating Ellsberg’s criminal trial (which did not reach the Supreme Court) with the question of whether the New York Times could legally publish the classified papers (which did reach the Court). It was Ellsberg’s prosecution that fell through on grounds of improper government behavior (Liddy and Hunt broke into the office of Ellsberg’s psychiatrist). In the Supreme Court case, publication was allowed on the grounds that the executive branch had not met the necessary burden of justification for restricting freedom of speech.

The court ruled that the government had not proved that publication would inflict "direct, immediate, and irreparable harm to the national interest."

What is bizarre is that Justice Stewart arrived at this conclusion after arguing that this determination was for the executive to decide, not the courts:

But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court. [At 730.]

I think the Court SHOULD exercise oversight here, but come on, Stewart had just claimed it shouldn’t!

Justice White’s concurrence is even weirder, arguing that publication by the New York Times might well be criminal, but asserting that this cannot justify an injunction. The Times must be allowed to commit the crime, THEN the legal system can act. This is how he interprets our ESPIONAGE laws. We are not allowed to interdict Benedict Arnold. We have to let him commit his treason, then we can execute him, but we can’t stop him.

Justice Black’s opinion for the Court asserts that there can be NO restrictions on freedom of speech. Evidently he would deny that we can even punish Benedict Arnold AFTER the fact, in spite of explicit Constitutional provision. Holy cow, what a bunch of morons. Blackmun is one of the few who made any sense:

I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate," to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests. [At 763. Hat tip, Hugh Hewitt.]

What is astounding to contemplate is how Court has flip-flopped from its First Amendment absolutism in the Pentagon Papers case to its First Amendment annihilationism in upholding McCain-Feingold. In the latter case, the merest suggestion of a state interest in combating the appearance of impropriety was sufficient to justify unbounded regulation of political speech. Surely under this new precedent, war powers based restrictions on publishing classified intelligence are a slam dunk. (My post on constitutional annihilism in general, and its origins in Korematsu v. United States, here.)

Sunday, May 22, 2005

It's "Koran," not "Quran" or "Qur'an"

Powerline commented on this last week. Upon seeing al-Newsweek's latest installment, "The Qur'an Question," I decided to let our leading dhimmis have a piece of my mind (go to this page to leave your own feedback):

Stop calling it the Qur'an. It's the Koran. It's not Deutchland. Its Germany. It's not El Salvador', It's El Sal'vador. We are not Saudis, or Germans, or Salvadorians. We are Americans. The correct way to spell and pronounce foreign words in America is with the American spellings and pronunciations. You are succumbing to what the jihadis call "dhimmitude." Not only are you submitting to the cultural authority of foreigners, but you are doing your best to submit to Islam. ("Submission" is literal translation of "Islam.") From now on we should call you al-Newsweek.

Interesting how the "multi-culturalist" left says it values diversity, yet validates foreign spellings and pronunciations as "correct." Where is their storied non-judgmentalism? Reserved for America, obviously. They cannot be called un-American, since anti-Americanism is a long American tradition on the left, but they most certainly ARE anti-American.

Want to see a truly sick example of al-Newsweek-like dhimmitude? Infoseek's Koran entry describes the Koran as: "Revealed by God to the Prophet Muhammad..." It does not say: "Believed by Muslims to be revealed by God." It says "Revealed by God." What dirtbags. I don't care if they are true-believing fundamentalist Muslims. This is an encyclopedia entry, borrowed from The Columbia Electronic Encyclopedia, 6th ed., 2005, Columbia University Press. It is supposed to state facts. The fact is that Muslims believe that the Koran is the word of God. It is NOT a fact that the Koran IS the word of God. Anyone who confuses these two is moral trash, which explains a lot about our Islamist enemy, but what explains Columbia University?

Let's see what Infoseek/Columbia says about the Bible. Ah, this is better. The first line reads:

The traditional Christian view of the Bible is that it was written under the guidance of God and that it therefore conveys truth, either literally or figuratively.

Multi-culturalists apply the requirements of moral logic to Christians (and to conservatives in general), but not to non-westerners, and not to themselves. Their great mistake is to believe that they can gain some advantage by allowing themselves the flexibility of moral irrationality. But as with any other failure to think straight, failing to think straight morally can only be detrimental to what one's own self would value. Only straight thinking addresses the real world. Error divorces cognition from reality, but only reality matters. Indulge error, and you can end up devoting all of your energies to doing evil, like the Islamists, or to accommodating evil, like the multi-culturalists.

John Steele Gordon (at Powerline) and Right Thinking both note that Qur' an is not a meaningful phonetic spelling. What is the apostrophe anyway? Is it supposed to indicate a contraction? Is it a stress mark? This isn't English.

Friday, May 20, 2005

Publishing classified intelligence is TREASON, again

The NYT explains the provenance of its 6000 word report on possible wrong-doing by U.S. soldiers in the deaths of Afghan prisoners:

The story of Mr. Dilawar's brutal death at the Bagram Collection Point - and that of another detainee, Habibullah, who died there six days earlier in December 2002 - emerge from a nearly 2,000-page confidential file of the Army's criminal investigation into the case, a copy of which was obtained by The New York Times.

"Confidential" is a national security classification. To publish confidential reports, harmful to the United States, in time of war, is to give aid and comfort to the enemy. The fact that the Army has compiled a 2000 page criminal investigation indicates that any wrongdoing that occurred is already being dealt with internally. No public interest is served by making this classified intelligence public, and even if there were a public interest, it would still be treason. Does the NYT actually have to be on the terrorists' side?

UPDATEIsikoff's Periscope item on Koran flushing was also sourced to a report that would certainly be classified:

These findings, expected in an upcoming report by the U.S. Southern Command in Miami...

When the report is completed it will presumably be classified, and the interrogation logs on which the report is based certainly must be classified. Publishing this stuff would seem to be a criminal offense.

Isikoff had another stinker last year based on what PBS asserts were "classified" (not "declassified") memos. "Double Standards?" blares the MSNBC headline, followed by the subhead:

A Justice Department memo proposes that the United States hold others accountable for international laws on detainees—but that Washington did not have to follow them itself

It is a bold faced lie, repeated in the article's first paragraph: "Justice Department lawyers advised that President George W. Bush and the U.S. military did not have to comply with any international laws in the handling of detainees in the war on terrorism." Click on the PDF of the memo and what it actually says is:

"We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-state actor cannot be a party to international agreements governing war."

It does not advise non-compliance with international agreements. It says that compliance with international agreements does not require treating al Qaeda as regular combatants.

To get into the details of the controversy between Justice and State on the matter, Isikoff has to cite the Justice Dept. position that the treaties do not apply to al Qaeda, but he just pretends that this is consistent with his lede characterization. Not JUST a criminal, but a dirtbag too.

P.S. Remember the pessimistic classified intelligence report on Iraq that anti-Bush operatives in the intelligence community compiled and leaked to the press last September. Kerry used the leak to paint Iraq as Vietnam, which Kerry had helped us to lose by lying about war crimes before the U.S. Senate. Funny how trying to reprise his role as hero-for-the-other-side did not win Kerry the presidency, but not a funny trick on the part of the seditious analysts who leaked the classified intelligence.

Wednesday, May 18, 2005

The persecution of Lee and Kan, Part I

The new affirmative action: take black criminals out of jail, put law-abiding Asians in

Imagine Ward Churchill wielding the power of the prosecutor’s office. That is Peter Waite, district attorney for Santa Clara County California. He has been waging a racist prosecution against two Asian policemen from Palo Alto for the last two years, charging them with felony assault for subduing a black man who resisted arrest. Waite is grossly misapplying the law, and he is doing so for explicitly racist reasons. He insists that police officers are required to treat blacks differently than whites. The officers’ first trial just ended with a hung jury. Waite will likely re-file charges by the end of the month.

The following is a four part expose of Waite’s perfidy, posted back to front so that visitors can read straight through starting from here, as far as interest carries. (Links to Parts II, III, and IV.) The four part structure corresponds to the critical legal distinctions that arise, and to Waite’s efforts to keep them from being reached. Part I describes what the case is actually about if the law is correctly applied. A highly suspicious and belligerent person obstructed a police investigation and was arrested for obstruction. He then resisted the arrest, and was arrested for resisting.

District attorney Waite is misapplying the law to make the case about something else. He charges that the investigation should never have occurred in the first place. By focusing on issues prior to the arrest, and the resisting of arrest, he establishes legal issues that must be resolved before the heart of the case can be gotten to. As a result, the case is like an onion. I start at the core, so readers will know what the actual crime was, then work outwards, dispensing with Waite’s obfuscations one by one.

Not being a lawyer, I may not be the ideal person to be writing this, but I am who there is. For two years I have been writing about this case, and the blatantly racist Palo Alto politics that have enabled it. I believe that my research into the law and the relevant precedents is reasonably competent, but I am not trying to assert the final word. I am trying to light a fire. The perversions of the law in this case are absolutely shocking. The officers involved are being persecuted by an activist political machine that will pervert every principle to get its pound of flesh, and like Shylock, they are aiming for the heart. Don’t think they can’t win. In P.C. Palo Alto, they already HAVE won. This injustice needs to be exposed in order that it might be countered, not only for these two officers’ sake, but to secure the legal principles upon which we all depend.

The lawCalifornia has the same basic statues as other states. It has an “obstructing” statute (penal code section 148a) that makes it a crime to obstruct a peace officer in the performance of his duties, and it has an “arrest” statute (code section 836) which says that an officer must have “probable cause to believe that the person to be arrested has committed a public offense” before he is allowed to bring the person under control. These two statutes often work as a one-two punch. If a person obstructs a police investigation, he has committed an “obstructing” offense, which gives an officer grounds for arrest. Once arrest has commenced, if the arrestee resists the arrest, that adds a “resisting” charge (also under 148a).

The caseThese fairly common circumstances—where a person who the police are investigating obstructs the investigation, and is arrested for obstruction—describe the California case in question. Palo Alto police had good reason to question the black man, one Albert Hopkins, who had been seen huddling down beneath the dashboard of his car at 10:30 PM in a neighborhood that had experienced a rash of burglaries. A scared woman flagged down the police cruiser of Palo Alto police officer Craig Lee to report Hopkins’ suspicious behavior, and an alarmed neighbor called 911 with the same alert. When officer Lee approached, Hopkins was immediately belligerent, cursing officer Lee for daring to question him and calling officer Lee a racist. Lee went back to his cruiser to check Hopkin’s license plate then re-approached to ask Hopkins if he had identification. In response, Hopkins lied, saying that he didn’t have a driver’s license. Hopkins then became physically aggressive, shoving the door of his car open at officer Lee and jumping out of the car, prompting officer Lee to order him back in.

When officer Michael Kan arrived, Hopkins changed his story, saying that he couldn’t find his driver’s license. The two officers decided they had enough to charge Hopkins with obstructing and ordered him out of his car. Hopkins refused. When the officers next thought they saw Hopkins fishing for something inside his car, they feared he might be reaching for a weapon and tried to pull him from his car. Hopkins then started fighting, yanking one of the officers into the car with him. The officers fought back, pulling Hopkins out of his car and using graduated force (pepper spray, then batons) to subdue him. [A good source of reporting on the case is The Palo Alto Weekly, here, here, here, here, here, here, and here. The San Francisco Chronicle and The San Jose Mercury News also have some coverage.]

Palo AltoOfficers Lee and Kan arrested Hopkins for obstructing a police investigation and for resisting his arrest on that obstruction charge, but local race activists (including much of Palo Alto’s politically correct political elite) immediately started screaming “racism” and the city immediately knuckled under, accepting Hopkins’ claim that “his only crime was sitting in a car while black.” Charges against Hopkins were dropped and Palo Alto officially declared fault by quickly paying Hopkins a quarter million dollars to settle his civil suit against the city for police brutality.

Waite should be disbarredPalo Alto’s failure to prefer obstructing charges gave Santa Clara prosecutors the opening they needed to misrepresent the law. If Hopkins was not obstructing, then on what grounds were the officers arresting him? With obstructing out of the loop, District Attorney Waite pretended that the pre-condition for officers Lee and Kan to bring Hopkins under control was that they had to have reason to believe that he had committed some crime other than obstruction of a police investigation. Here is how The Palo Alto Weekly covered Waite’s statement on this point: “A legal detention requires the officers to believe Hopkins might have committed a specific crime, Waite argued. ‘If you ignore that fact, if you make it a mere technicality, why not shoot Hopkins in the head?’” (Yes, that is typical Peter-Waite speak.)

Waite also made clear that by a “specific crime,” he meant a crime Hopkins had been committing before he was engaged by the police. Again, as reported by the P.A. Weekly: “Waite shocked the courtroom by stating the beating Lee and Kan gave 59-year-old Albert Hopkins in 2003 was in some ways worse than the thrashing [Rodney] King received from a group of Los Angeles police officers in 1991. Unlike Hopkins, Waite argued, King committed a crime—drunk driving. ‘At least King deserved some of that beating,’ Waite said.” (id.)

Actually, a legal detention does NOT require “the officers to believe that Hopkins might have committed a specific crime.” As will be seen in Part II, they need reasonable suspicion that crime is afoot. They don't have to know the specific crime. Also, Rodney King was not beaten for drunk driving. He was beaten for resisting arrest, just as Hopkins was, and he did not “deserve” his beating, he warranted it, every bit of it, according to the first, un-cowed, King jury. But set all that aside. If Waite had stated explicitly that the “specific crime” the police are reacting to when they make an arrest has to be some crime that was committed before the police arrive, he could be disbarred. Making the same claim by referencing the crimes that Rodney King committed prior to obstructing and resisting is just a slippery way of doing the same thing.

Waite’s racismWaite’s reasons for pursuing this grotesque misapplication of the law are explicitly racist. According to The San Francisco Chronicle: “Prosecutor Waite argued that police never had a legal justification to detain Hopkins and should have ended their ‘consensual’ questioning as soon as the man told them to stop hassling him because he was black.” It should make absolutely no difference what kind of racial smokescreen a legitimate object of investigation blows at the police. If I was hiding beneath the dashboard of my car and frightening women passersby, would the police have to stop questioning me if I said: “Stop hassling me because I’m white”? Of course not, and Waite agrees.

According to Waite, only blacks are exempt from questioning. In court, Waite urged the jury to disregard testimony by non-blacks. According to the Weekly’s court reporter, Waite “constantly insinuated the two concerned residents were acting due to their racial biases. ‘Palo Alto, it's the kind of place where citizens—as is their legal right to do—call in black people that are walking down the street or sitting in their car,’ Waite said in his opening statement.” i.e. The police should not treat citizen calls for investigation the same when blacks are involved.

Peter Waite is a flat-out flaming racist. He criminally misapplied the law for explicitly racist reasons. He tried to racially intimidate the jury by raising the prospect of Rodney-King type riots. He accused white witnesses of being inherently racist. Then he topped it all off by accusing the Asian jurors who stuck up for Kan and Lee of being racially motivated. How DARE they not be buffaloed by Waite’s racial demagoguery?

A new extension of affirmative actionIs the Bay Area’s large Asian community finally going to wake up and say “enough”? It is well understood by now that affirmative action in academia takes admission spots almost exclusively from Asians and gives them to blacks. Waite wants to take this a step further. Instead of Hopkins going to jail, the Bay Area’s affirmative action leftists want to put two law abiding Asian men there in his stead. If that isn’t enough to stir the Asian community to some kind of interest, I’m sure our left-wing race-bigots have plenty more in store.

The persecution of Lee and Kan, Part II

The encounter between officer Lee and Albert Hopkins involved a detention of Hopkins that preceded his arrest. When early in the encounter Hopkins aggressively pushed his door open at officer Lee and jumped out of his car, Lee pulled his pepper spray and ordered Hopkins to get back in. A key accusation made by Santa Clara District Attorney Peter Waite is that this detention was illegal. According to one line of Supreme Court precedent, detention requires that an officer have “reasonable suspicion,” based on “articulable facts,” that crime may be afoot, past, present or future. (The “reasonable suspicion” standard, and its application to crimes that have not been committed yet, comes from Terry v. Ohio, 392 U.S. 1 (1968), which upheld searches of suspicious men who seemed to be casing a commercial establishment.)

According to court reporting, the efforts of the Lee and Kan defense team seem to have been focused on meeting this “reasonable suspicion” requirement, and they had a pretty good case. Officer Lee had been alerted to Mr. Hopkins presence by a woman who flagged down his cruiser and gave non-specific information about a man in a car who had done something to frighten her. En route another call came in from some alarmed homeowners that a man was ducking out of view in his car. When Hopkins was immediately aggressive towards officer Lee, it was certainly reasonable to suspect that he had acted aggressively toward the frightened woman. His ducking down could have been lying in wait to commit crimes of opportunity against passersby, or he could have been casing for property crime in an area known for property crime.

Officer safety as grounds for detentionAs strong as the grounds for reasonable suspicion were in Hopkins’ initial detention, reasonable suspicion was not the proximate rationale for the detention. Officer safety was, and a second line of Supreme Court precedent establishes officer safety as a fully competent stand-alone justification for detention. The seminal case here is Pennsylvania v. Mimms (434 U.S. 106, 111, 1977), where the Court articulated the basic principle that “the safety of the officer—is both legitimate and weighty.” This principle has been expounded in a series of cases involving exactly the issue of the Hopkins case: when the police can, for safety reasons, initiate detention by ordering people into or out of their vehicles.

A recent example is United States v. Clarke, from the 11 Circuit (2003). An officer came upon two men fighting outside to their car, with a third urging them to stop. Upon separating the combatants, the officer ordered the non-combatant to get in the car, in spite of having no reason to suspect that the non-combatant was involved in any criminal activity. This detention eventually led to the non-combatant’s arrest when he was found to have an illegal gun. The court held the detention valid, asserting that: “the interest in officer safety outweighs the liberty interest of a passenger who is not suspected of violating the law.” (At. p. 10 of the PDF.)

In District of Columbia v. Rogala, the D.C. circuit ruled in 1998 that detention for purposes of officer safety is especially warranted when “the officer is alone and feels threatened.” In various Supreme Court cases, the Justices found that both drivers and passengers could be ordered either in or out of their vehicles, however officer safety was best served. (in addition to Mimms, see Maryland v. Wilson.) In all of these cases, the threat to the police officers involved was generic and hypothetical. None of the detainees had done anything to threaten the officers involved, and officer safety was still ruled to take precedence.

In the Hopkins case, the threat to officer Lee was not hypothetical, but was fully realized. When officer Lee told Hopkins to get back in the car or get pepper sprayed, Hopkins answered: “I dare you,” which can reasonably be interpreted as a threat to fight, as Hopkins later did when Lee and Kan tried to arrest him. The Supreme Court addressed the case of especially threatening circumstances (still merely hypothetical) in Michigan v. Summers, 452 U.S. 692, 703 (1981). Detention of people not suspected of a crime was upheld in this case on the grounds that: “The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”

These cases generally involve circumstances where reasonable suspicion is already present for suspects other than the particular detainees in question, but according to the general principles enunciated, this should not be a pre-requisite for giving priority to officer safety. So long as the encounter is legal (as officer Lee’s approach to Mr. Hopkins certainly was) then the “legitimate and weighty” concern for officer safety is properly in play, in which case it “outweighs the liberty interest of a passenger who is not suspected of violating the law.”

Getting back to obstructionDistrict Attorney Waite, by focusing prosecution arguments on officer Lee’s initial detention of Hopkins, was able to remove from the picture the grounds on which Hopkins was actually arrested. Once Hopkins’ initial detention is seen to be proper, this real substance of the case can be gotten to. In response to Hopkins obstruction of their investigation (most obvious was the lie about not having a driver’s license), the officers decided to arrest Hopkins for obstruction, and in preparation for doing so, ordered Hopkins out of his car. When Hopkins refused, then seemed to be fishing for something in his car, the officers jumped in to again detain him for the immediate purpose of officer safety. It is a toss up whether they were arresting him before they grabbed him for officer safety. In any case, as soon as he started resisting this detention/arrest, resistance is its own offense and Hopkins was arrested for it.

No one who has looked at the case denies that, if the initial detention was legitimate, the arrest and the beating were legitimate (even, by implication, Peter Waite, since he avoided this actual heart of the matter like poison.) If Waite is stupid enough to re-file, his bogus claim that the initial detention was illegal will not catch the defense by surprise again. The initial detention will be shown to be fully legitimate on two independent, fully competent grounds. There was reasonable suspicion that Hopkins was looking to commit a crime of opportunity, “past, present or future,” and officer safety clearly warranted detention. Bring it on Waite. Your red herring will be annihilated, the case will reach the merits, and you will stand exposed for trying to punish what your own expert witness described as a “textbook perfect” arrest.

Did I forget to mention that earlier? When Waite saw that the expert’s report was exculpatory he refused to take possession of it, pretending that he therefore did not have an obligation to turn it over to the defense. The defendants only found out about the report through other channels. This from a prosecutor who is charging the POLICE with perpetrating wrongs under color of authority.

The persecution of Lee and Kan, Part III

The prosecution’s last redoubt is the claim that officer Lee was acting illegally by even approaching Mr. Hopkins, after Hopkins told him to go away. This claim is completely untenable. Detention and arrest constitute “seizure” and hence are regulated by the Fourth Amendment’s protection against “unreasonable searches and seizures.” That is where the “reasonable suspicion” requirement for detention comes from. But mere contact and the posing of questions does not constitute seizure and hence is not regulated by the Fourth Amendment.

The key precedent here is United States v. Mendenhall , 446 U.S. 544, 552 (1980), where the Court clarified “[t]he distinction between an intrusion amounting to a ‘seizure’ of the person and an encounter that intrudes upon no constitutionally protected interest…” For guidance, Mendenhall looks to the reasoning of Terry (op cit.), citing Justice White’s opinion that:

"[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets," [Terry], at 34. Police officers enjoy "the liberty (again, possessed by every citizen) to address questions to other persons," id., at 31, 32-33 (Harlan, J., concurring), although "ordinarily the person addressed has an equal right to ignore his interrogator and walk away." Ibid.

Hopkins telling officer Lee to go away does not carry any more force than if he were to tell ME to go away. I don’t have to go away. I can still ask him questions. I can ask him what the hell he is doing huddling beneath the dashboard of his car. I can ask him what he did to scare that woman, and so can officer Lee. Hopkins is free not to answer and he is free to leave, until such time as he is detained.

This isn’t to say there are no limits on non-consensual questioning. If it goes on long enough and with enough show of force, the 9th circuit ruled in Morgan v. Woessner (1993) that questioning can mislead the questionee into believing that that he is not free to leave, which could then constitute seizure. Still, questioning cannot in itself constitute seizure, and officer Lee’s questioning of Hopkins was as mild as can be imagined. In his first approach Lee asked Hopkins if he was okay. When Hopkins started cursing and told Lee to go away, Lee first withdrew, then returned and asked Hopkins if he had a driver’s license. That’s it. Hopkins then blew up and got himself detained in his car on grounds of officer safety.

Officer Lee posed just about the theoretical minimum of non-consensual questioning. He asked if Hopkins had a driver’s license. If that is allowed to constitute “seizure,” then there is NO distinction between questioning and seizure, in direct contradiction to the Court’s assertions in Mendenhall. Waite’s position—that officer Lee should have ceased questioning “as soon as the man told them to stop hassling him because he was black”—is a straight rejection of the Court’s assertion that questioning and “seizure” are NOT the same thing. At some point, enough forceful non-consensual questioning can become Fourth Amendment “seizure,” but that point CANNOT be reached immediately.

MirandaIf you look at police department guidelines for field interrogations, you will see that they generally instruct officers that, if a person does not want to answer questions, officers are to “back off and not talk,” unless there is a “reasonable suspicion” grounds for detaining them. Officer Lee’s supervising officer, Rebecca Phillips, testified to this instruction for Palo Alto officers. But the purpose of these instructions is not to keep officers from violating any statutory or constitutional law. The purpose is to protect the admissibility of evidence under Miranda rules. Coerced confessions are illegitimate under the Fifth Amendment’s right not to incriminate oneself and non-consensual questioning raises the question of whether answers are truly voluntary. To keep cases from getting thrown out on technicalities, police departments instruct officers to give Miranda type concerns a wide berth.

Set aside for the moment all the grounds for reasonable suspicion in the Hopkins case. Even in the absence of reasonable suspicion, there is still every difference between police actions that can in themselves be illegal (detaining people when there is no reasonable suspicion that a crime has been or will be committed), and police actions that might taint evidence but are not illegal (Miranda violations). People cannot be prosecuted for things that are not illegal, but that is what Waite is doing. The “punishment” that keeps officers from improper questioning under Miranda and related rulings is the exclusionary rule: that answers received might not be admissible in court. There is no criminal sanction. The purpose of “back off and don’t talk” policies is to preserve the admissibility of evidence, not to keep from breaking the law.

If officer Lee had detained Hopkins in his car on the strength of Hopkins’ driver’s license lie, there might be a very tenuous case that the detention was flawed, and that evidence proceeding from it could not be used to prosecute Hopkins. But officer Lee did NOT detain Hopkins for his driver’s license lie. (Hopkins voluntary answer to that question had not yet been revealed to be a lie.) Lee detained Hopkins for purposes of officer safety when Hopkins became physically aggressive. It is conceivable, under the most egregious over-reading of the egregious Miranda precedents, that officer Lee might have managed to taint a piece of potential evidence. It is not conceivable that this possibly imperfect questioning (and the contact under which it occurred) was ILLEGAL.

That sinks any argument that Hopkins’ detention was illegal because the contact that preceded it was illegal. The contact was perfectly legal and so the legality of the detention has to be considered on its own, and as we saw in the previous section, the detention was clearly legal on grounds of officer safety.

What does the 5th Amendment really say?The Supreme Court has recently re-injected a little sanity into its 5th Amendment jurisprudence. Last year the Supreme Court clarified the application of the Fifth to police investigations when it upheld the conviction of a Nevada man for refusing to give his name during a routine investigation. The Court ruled that a person’s name is public information and that revealing one’s name cannot by itself constitute self-incrimination under the 5th Amendment. That is, the Court has started to move away from the fabricated “right to remain silent” and has taken a step back towards the actual right not to incriminate oneself.

By this standard, what 5th Amendment claim could Hopkins possibly make? How does a supposedly innocent man need to be allowed to be physically aggressive, verbally belligerent, give misleading information, and refuse to get out of his car, in order to not incriminate himself? Yet all of these actions obstruct the police in the performance of their duties, giving grounds for arrest. The right of citizens not to incriminate themselves does not imply a right not to be questioned for suspicious behavior, even if you do say: “stop hassling me because I’m black.”

The persecution of Lee and Kan, Part IV

Do Miranda violations give a suspect a right to fight with the police?

Waite’s prosecution of officers Lee and Kan reduces to the outrageous contention that if a defendant’s lawyers can convince the courts that the arresting officers broke Miranda rules in any way, then not only is evidence to be excluded, but the defendant gains a right to resist arrest--to fight the arresting officers tooth and nail--and if any force is used to subdue that resistance, to have that force charged against the police as felony assault under color of authority. But only if you are black.

This is the real insanity of the prosecution. Suppose that the arrest itself could somehow be shown to be wrongful. Waite’s whole premise is that this would justify Hopkins’ fighting with the police, which is a rejection of the very concept of rule of law. Police make flawed arrests all the time. Remedy must come through the courts. That is what courts are for: to sort out which of the accused are actually guilty. Waite is saying that it is okay for Hopkins to act as a vigilante, and enforce his own judgments outside of the legal process. He is rejecting the rule of law.

The only time an arrestee can be legally allowed to fight back is if he is trying to surrender peacefully and officers are beating him unnecessarily. Hopkins, in contrast, adopted a fighting stance when pepper sprayed and “growled” at the officers. They did not use more force than necessary, but graduated their level of force only as necessary to induce Hopkins to stop fighting. The idea that any flaw in the arrest process means that people no longer have to submit to the legal process but can without legal consequence go to war against the police is a complete rejection of the system of law that Waite is sworn to uphold.

A “regular processes” of legal authorityIs there any legal basis for Waite’s ambitious new legal theory, that if there is any flaw in a suspect’s arrest, then the suspect is allowed to fight with the police, and the police are criminally liable for any harms that ensue? California’s primary “color of authority” statute looks on the surface like it might actually leave a tiny bit of room for this interpretation. Code section 146, reads:

Every public officer, or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, does any of the following, without a regular process or other lawful authority, is guilty of a misdemeanor: (a) Arrests any person or detains that person against his or her will. (b) Seizes or levies upon any property. (c) Dispossesses any one of any lands or tenements.

In the defense’s favor, “a regular process” of legal authority would seem to be quite open ended, in line with the California’s “obstruction” statute. So long as police are engaged in some police duty, like investigating citizen complaints, obstruction is a crime. Similarly, any normal police duty would seem by definition to fall under “a regular process [of] legal authority.” But what if department policies are designed, as Palo Alto’s are, to give extra wide berth to Miranda rules, so as to insure that cases are not thrown out on technicalities? Would any failure to adhere to the letter of such stringent department policies place an officer’s actions outside of the “regular process” of legal authority, leaving the officer properly subject to prosecution under 146?

This seems to be Waite’s gambit, but it cannot hold up. Discretion and mistakes are undeniably part of the “regular process” of police investigations. There must also be room in the “regular process” for what the Supreme Court recognizes as an officer’s constitutional right to ask questions of a non-consensual contact. (See Mendenhall, discussed in Part III). Otherwise the “regular process” is unconstitutional. True, the constitutional rights of the Police don’t play out quite the same as other people’s rights. The implied authority of police officers means that their questioning can be expected turn into an implied detention more readily than questioning by private citizens does. As a result, the right of the police to question people without their consent conflicts with competing rights sooner than other people’s right to question each other non-consensually (Woessner, also discussed in Part III). But until competing rights take over, officers' rights must be recognized by the “regular process.”

Strict liabilityA second untenable pillar of Waite’s gambit is his assertion of what amounts to “strict liability” for all harms that follow from an alleged Miranda violation, whether or not there is any criminal intent on the part of the violating officer. Indeed, he is effectively invoking the rare strain of strict liability that applies in “felony murder” cases. With “felony murder,” someone who is found guilty of committing a violent felony like armed robbery is automatically considered guilty of murder if anyone dies during the robbery, even if the intention was for no one to get hurt. This makes sense because a robber knows that robbery creates risk of violence, and society’s interest in stopping criminal violence warrants maintaining this accountability.

There is a superficial parallel here to officer Lee’s actions. If we assume that citizen reports of Mr. Hopkins engaging in what could be considered “casing behavior” did not create reasonable suspicion from the outset (a big ‘if’), then officer Lee’s decision to re-approach a non-consenting Mr. Hopkins would be a violation of department policy, with possibly foreseeable consequences. But there are two obvious flaws in the analogy to felony-murder. First, violating department policy is not a crime, so it cannot create the culpable mental state necessary to charge criminal responsibility for what may ensue. Second, the foreseeable consequence of violating Miranda driven policies is not that violence may ensue. It is that a subsequent arrest might be ruled inadmissible in court and a criminal might get off on a technicality. THAT is why these policies exist.

Hopkins’ guiltThe clearest view comes from noting how officer Lee’s failure to stay ten miles away from a Miranda violation would have affected the outcome of Hopkin’s trial, had his arrest on “obstructing” and “resisting” charges been prosecuted. It would have had no effect at all. Any reasonable jury would have found Hopkins guilty, despite the fact that officer Lee might have asked him for his driver’s license in violation of department policy. It is not clear whether Hopkins’ arrest on obstruction charges relied on the fact that he lied about not having a driver’s license, but suppose it did. The department policy that urges officers in that situation to “stay back” goes far beyond Miranda. Asking Hopkins if he had a driver’s license did not constitute “seizure,” so it did not require reasonable suspicion. That means Hopkins’ lying response would be perfectly admissible in court, even if asking the question did violate department policy. Had Hopkins been tried, he should certainly have been found guilty of “obstructing,” and then of “resisting” arrest on that obstruction charge.

If Hopkins was guilty of a crime, how could it be wrong for officers Kan and Lee to have arrested him for it? They can’t be found guilty of wrongly arresting someone who, via a guilty conviction, is proved to have been RIGHTLY arrested. Here is where Palo Alto’s failure to stand behind its officers really hurts. Hopkins WOULD have been found guilty, in which case the very idea of charging officers Lee and Kan for arresting him would be unthinkable.

The same unthinkableness should also apply in the case where an officer actually does violate Miranda. An arrestee still has an obligation of citizenship not to violently resist the police, but to instead let the issue be settled in court. Technically, police mistakes and police discretion are part of the “regular process” of police work. Physically resisting that process is illegal under code section 148. Less technically, we all have a fundamental obligation to submit to the rule of law, and settle conflicts in court rather than through personal violence. Violent resistance to the police must always in-itself be a crime, so long as the police are not using excessive force to try to affect an arrest, whether that arrest will hold up in court or not. In the Hopkins case, no one suggests that Kan and Lee used more force than was necessary to subdue Hopkins. To hold the officers responsible instead of Hopkins is to side against the rule of law.

Appeal is de novoPeter Waite is a moral pervert for the ages, a Ward Churchill who has managed to get his hands on prosecutorial power. Has a public official ever before perpetrated a racist jeremiad that so thoroughly perverts so many basic legal principles? Yet Waite only needs to get a few more of California’s blue-state bigots on the jury next time and Lee and Kan may even be convicted.

If they are, there will be a chance to appeal the issues of this case to higher courts. In such an appeal everything will be reviewed anew, the facts as well as the law. Most criminal cases are only reviewable for procedural errors, but because of the importance of maintaining consistent standards for warrantless investigations, the Supreme Court has made an exception in these cases. As the Supreme Court asserted in United States v. Ornelas, 517 U.S. 690, 691 (1996):

The ultimate questions of reasonable suspicion to stop and probable cause to make a warrantless search should be reviewed de novo. The principal components of either inquiry are (1) a determination of the historical facts leading up to the stop or search, and (2) a decision on the mixed question of law and fact whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

Instead of manipulating a panel of naïve jurors with his racial demagoguery, Waite will have to try to demagogue a panel of judges. Officers Kan and Lee should not worry. The further this case must be appealed to win vindication, the more fellow officers will win protection through their ordeal.

These supervisors don't just need to be fired. They need to be PROSECUTED! They are obstructing enforcement of the law, a clear violation of statutes in every state and the Union that all government officers must UPHOLD THE LAWS. Telling officers not to do their duty is ILLEGAL.

Stomp 'em into the ground Bush. Show us you have that Reagan touch at home as well as abroad.

Friday, May 06, 2005

'Reverse incorporation' and Korematsu

A confab of bloggy law professors over at Volokh has gotten around to the question of "reverse incorporation," whereby the Supreme Court decided that, even though the equal protection clause explicitly applies only to the states, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” (Chief Justice Earl Warren writing for the majority in Bolling v. Sharpe, 347 U.S. 497, 500 (1954).) i.e. It is "unthinkable" that the Fourteenth Amendment means what it says, so Justice Warren was magnanimous enough to fix it for us!

Volokh contributor David Bernstein links a paper he has written arguing that Warren's main argument in Bolling actually has a sound Constitutional foundation and that the "reverse incorporation" pitch is just dicta. Be that as it may, Bolling is in any event not the case that established the reverse incorporation doctrine. That dishonor goes to United States v. Korematsu, the case that upheld the internment of Japanese-Americans during WWII. Where Bolling declared the principle of reverse incorporation without actually relying on it, Korematsu had ten years earlier relied on the principle of reverse incorporation without declaring it.

Korematsu's surreptitious approach to reverse incorporation actually turns out to have been much more harmful than the overt approach has ever been. The overt approach is overtly unconstitutional, which has limited its application. Korematsu, on the other hand, just happens to be the case that established the entire modern system for deciding when constitutional provisions can be over-ridden, and it established this system while carefully eliding all distinctions between state and federal government (so as to hide the fact that it was misapplying the Fourteenth Amendment to the federal government).

What is the consequence of eliding the distinction between state and federal interests? Just consider what the primary federal interest is: the Constitution. Korematsu's sneaky approach to reverse incorporation has had the effect of placing the Constitution on the same plane as generic state interests, effectively annihilating the principle of constitutional supremacy! This is why we now see such abominations as the Supreme Court in Grutter v. Bollinger acknowledging that racial preferences in state university admissions violates the equal protection clause, yet at the same time allowing the equal protection to give way on the strength of a highly dubious competing state interest: Michigan's claim that its law students get a better education when students of one race are favored over students of another race.

It is a borderline question whether this proclaimed state interest is even an admissible state interest under the Constitution. Certainly it is not constitutionally required. How then can it take precedence over an actual constitutional provision? Aren't constitutional provisions only to give way when they confront competing constitutional provisions? Not under Korematsu. ANY "compelling state interest," be be it a constitutional requirement, or a mere state level interest, is sufficient grounds, post-Korematsu for setting aside a constitutional provision. It is not a necessary grounds, but it IS sufficient. The Court gets to decide what it thinks is weightier: the proclaimed compelling-state-interest, or the Constitution. The very principle of constitutional supremacy is set aside.

In the Korematsu case, there actually WAS another constitutional provision on the other side of the federal-equal-protection-requirement that the Court wanted to fabricate. Opposing the supposed federal-equal-protection-rights of the interned Japanese were the Constitutionally granted war powers of the President, and Article I section 9 is explicit that war powers take precedence over individual rights: "The Privilege of the Writ of Habeas Corpus [i.e. the enforcement of individual rights] shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." [Article I section 9 is nominally addressing the war powers of Congress, but the same prioritization applies to the war powers of the executive, which is the final judge of military necessity.] The Court didn't have enough hubris to in time of war try to overturn the Constitution's explicit prioritization of war powers and so it made the correct ruling (upholding internment), but it did so on the wrong grounds.

To uphold the fiction that the federal government is constrained by the equal protection requirement, the Court had to elide the distinction between federal and state, ushering in the ultimate instrument of "living Constitution" jurisprudence. The Court can now set aside the Constitution in favor of absolutely whatever it deigns to designate a "compelling state interest," and not just in the area of equal protection law. This same criterion has migrated from equal protection to First Amendment law. That is how the Court (in McConnell v. FEC) was able to uphold the unlimited regulation of political speech under McCain-Feingold. It found a version of a compelling state interest in regulating political speech and this was sufficient for setting aside the First Amendment.

We still have a written Constitution, but it is no longer the supreme law of the land. Supremacy now lies in a panel of would-be-Solomons, whose predecessors granted themselves Solomonic power to set aside the Constitution whenever they see fit. This betrayal occurred via the Court's completely gratuitous bit of do-gooding in the Korematsu case. The fabricated federal equal-protection constraint was acknowledged to be overcome by the "compelling state interest" in (instead of by the clear constitutional provision for) letting the executive determine what is and is not a matter of military necessity. For this bit of bit of grandstanding, the Constitution now lies in shreds.

Maybe Cass Sunnstein and Jeffery Rosen did concoct the "Constitution in Exile" moniker out of their own fevered imaginations, but you know what? I like it. Bring that Constitution back out of exile. The place to start is with the carefully calculated dishonesty of Korematsu.

Thursday, May 05, 2005

Threatening good soldiers with prosecution encourages the Kerry strategy for defeating America

Marine investigators have finally cleared the Marine who shot a wounded Iraqi fighter who he saw was feigning death. About time, but he never should have been investigated in the first place. What could be more obvious than that an enemy fighter engaged in surreptitious behavior is still in the fight and at close range needs to have his central nervous system taken out before he can trigger an explosion? The only possible reason to investigate a foregone conclusion is political. Military brass thought that by investigating this high profile incident, they would demonstrate to the world the high standards of integrity that American soldiers are held to.

Such politically motivated investigations actually transmit a very different message. They declare loud and clear that America will knuckle under to perceptions, which is the one hope that fuels the Sunni/Baathist/Islamist resistance in Iraq. If they can just get us to doubt our cause and its prospects, maybe we will fold up and leave, as we did in Vietnam. Call it the John Kerry strategy for defeating America. It worked once. We defeated the Viet Cong on the battlefield, but when anti-American zealots like John Kerry treasonously lied that American soldiers were routinely committing war crimes, the military stayed on the defensive. By failing to prosecute Kerry's lies as treason, the military let them stand as credible, and America lost its will to fight.

In a battle for hearts and minds, the military needs not just to be willing to punish bad behavior within the ranks, but also to stand behind good soldiering. We did not need this investigation of an obviously appropriate shoot. Any commander on the scene could have vouched for the necessity of immediately dispatching any possum-playing enemy fighter. The calculation that supererogatory self-criticism advances our cause is simply wrong. It plays right into the enemy's hands, making their claims of wrongdoing seem credible, when a forthright defense could explain directly why their claims of wrongdoing are NOT credible. Now, five months later, we now get a vindication that the mainstream media will run in three paragraphs on page 22. That is better than answering the accusations when they were made in the first place?

Another case that seems to fall into the same category is that of Marine Corps 2nd Lt. Ilario Pantano, who is facing murder charges, and the death penalty, for shooting two Iraqi prisoners that he says refused repeated orders to stop communicating with each other, then turned in a sudden coordinated movement. On the other side, military prosecutors are charging that the shooting was completely gratuitous, for which they seem to be relying completely on the testimony of a subordinate of Pantano’s who Pantano had demoted for incompetence days before the incident, a man who is alleged to have declared his hatred for Pantano, and who apparently stated in this week's preliminary hearing that he did not see what happened.

The case bears all the earmarks of a politically motivated prosecution. Pantano's accuser is quite obviously a lot less credible than Pantano, but Pantano was "politically incorrect." After shooting the aggressive prisoners, Pantano labeled them with the motto of General James Mattis: "No better friend, no worse enemy." He also shot two full clips into his attackers, instead of minimal bursts, in order, he said, to send General Mattis's message. But the military is not charging Pantano with desecration of a corpse. They are charging him with murder. Now our soldiers are supposed to worry about how many times they can shoot someone they need to shoot?

These were terrorists, caught with a weapons stash. Pantano had them ripping apart their SUV to show there was no bomb inside when they became disobedient and he shot them. Nobody is actually so stupid as to think that a Marine should not shoot prisoners who are initiating a coordinated attack, but clearly a lot of people in the military ARE stupid enough to think that attacking our own soldiers helps rather than hurts the battle for public opinion. They already managed to lose one war by failing to stand up for their soldiers. Are they going for two?

It is time for the military to start attending to the other half of the hearts and minds equation. It is not enough to punish bad behavior. It is just as important to defend sound, aggressive soldiering. Since when is obliterating an enemy who is still in the fight NOT a message we want to send? That is how wars are won, and stating clearly our intention to win is an important part of the battle. Punishing a soldier specifically because his aggressive soldiering sends a fierce message is insane. It feeds the enemy’s “Kerry strategy” by de-legitimizing legitimate behavior, and it makes our soldiers second-guess necessary action.

It is hard to imagine that Pantano's judges will proceed with charges. Clinton's pink-panty brigade cannot have taken over the entire military justice system. But tremendous damage is still being done, and if Pantano is charged, there had better be a damned good explanation, completely devoid of the P.C. hand-wringing put forward by prosecutors.

About Me

Here is a short bio I sent to press people covering the Flight 93 memorial debacle. My training is as an economist. I was in the PhD program in economics at Stanford until my research led me more towards moral theory and constitutional law, at which point I dropped the program and started working on my own. I was writing a book on republicanism (the system of liberty under law) for World Ahead Publishing when I discovered that the Flight 93 memorial was going to be a terrorist memorial mosque. World Ahead agreed to first publish my book about this rehijacking of Flight 93 (Crescent of Betrayal, temporarily available for free download at CrescentOfBetrayal.com). This is not my first venture into journalism. Over the years I have been a writer, opinions editor, and advisor for Stanford’s conservative campus newspaper The Stanford Review, and am currently on the Review’s board of directors.